In late April, U.S. government lawyers withdrew their opposition to having a special master conduct privilege review of the documents seized from Michael Cohen, the personal lawyer of President Donald Trump. They suggested a new way forward: Technology Assisted Review (TAR) to identify potentially privileged material.
U.S. Magistrate Judge Frank Maas of the Southern District of New York added that he would bring on Canada’s leading Research Professor in TAR, Maura Grossman to assist with the review.
TAR is the latest buzz in e-discovery circles. The development of technology to assist with managing review, expediting review and reducing its costs varies from predictive coding, concept-clustering and other analytics tools. The potential advantages when using TAR in a privilege review include: speed, accuracy, defensibility, and transparency.
The process selected for use in this case will surely be the talk of the town in the eDiscovery and technology circles, as it has the capacity to open the floodgates for the use of TAR in future cases requiring a privilege review.
From Cyberlex: Parliamentary Committee Recommends Substantial Revisions to PIPEDA - Part 2 – Consent
(See the original article by Kirsten Thompson, Charles Morgan and Maureen Gillis at McCarthy Tétrault's Cyberlex Blog: Parliamentary Committee Recommends Substantial Revisions to PIPEDA – Part 2 - Consent)
As reported in our recent post, on February 28, 2018, the House of Commons Standing Committee on Access to Information, Privacy and Ethics tabled in the House of Commons a report entitled Towards Privacy by Design: Review of the Personal Information Protection and Electronic Documents Act. The recommendations in the Committee’s Report are also heavily influenced by the direction set in the European Union General Data Protection Regulation, (“GDPR”) which comes into force this year.
We have prepared a multi-part series of posts focusing in more depth on each section of the Report.
In this post, we summarize and comment on the Committee’s findings set out in Part 2 of the Report, which addresses the issues of “meaningful consent” and the enhancement of the consent model, exceptions to the rule of consent, and data portability.
The other posts in this series are:
Part 2 – Consent
The concept of consent underpins the entire framework of PIPEDA. Essentially a contract-type model, this approach envisions an enlightened user who freely trades his or her personal information in exchange for services. The premise is that the best protection for personal information is therefore to create the conditions in which individuals are free to use their personal information as they wish. This ethos is stated in PIPEDA ‘s Principle 3 as “The knowledge and consent of the individual required for the collection, use and disclosure of personal information, except where inappropriate.” Further sub-principles articulate other aspects of consent, such as the necessary processes and timing in obtaining consent, types of consent, and how consent is to be made meaningful.
However, this consent model is under pressure from online technologies. The Report acknowledges this and begins by setting out the Office of the Privacy Commissioner of Canada’s (“OPC”) concern that innovation in information technologies has added significant complexity to online interactions and resulted in more ways to use information. As result, few individuals take the time to inform themselves of the conditions of use of their personal information. Compounding the problem, noted some witnesses, is that the privacy policies meant to inform individuals are often unreadable or too vague and consent obtained is illusory.
Notwithstanding the problems with the current consent model, most witnesses supported its continued use, albeit in modified form to address the current shortcomings. Many supported enhancements to implicit consent, including “deemed” consent when the risk of harm is low. Other witnesses cautioned against this approach, noting that if is often difficult to evaluate risk and potential harm beforehand.
Other witnesses supported implementing measures that would make consent more meaningful.
Enhancements to Consent
The overall recommendation of the Committee was ultimately that while consent should remain the core element of the privacy regime, it should be enhanced and clarified by additional means. The Report explores four areas in which the consent model could be enhanced and in some cases makes specific recommendations:
Exceptions to Consent
While consent underpins PIPEDA, the legislation also recognizes situations in which consent should not be required.
Time again to dust off our crystal ball and give you our guaranteed predictions of what you will see happening in e-discovery in 2017:
1. The Cloud
We have already started seeing a move away from on-premise e-discovery installations. With kCura’s recent move to hosting on Microsoft Azure, combined with Microsoft’s rollout of Canadian data centres earlier this year, we expect to see more law firms ditching their current in-house installations and moving to cloud based e-discovery software.
2. More Options for Canada
We predict a greater acceptance that cloud based software is just as secure, if not more secure, than in-house installations. We have been told by several south-of-the-border e-discovery software vendors that they have plans to launch Canadian data centre hosted installations in the coming year. We can’t divulge who they are (that would spoil the surprise), but look for more options next year.
3. More Discovery Plans
The OBA Civil Litigation group has prepared a paper questioning the value of the current rules relating to discovery plans. We see an increasing need for effective discovery planning. E-discovery is not going away as data volumes increase. Different forms of communication are developed all the time. As awareness of discovery plans and their usefulness for even small cases increases, more and more lawyers will start to use them, and start discussing scope and exchange of documents sooner, exactly the purpose of the discovery plan.
4. Better Search
Although keywords will remain the dominant form for searching for relevant information, we expect to see better workflow surrounding keyword searches, and more use of other search technologies, such as conceptual categorization, assisted review, and machine learning. We are already past the adoption curve, and 2017 will be the year TAR becomes mainstream in Canada.
5. Better Organization
Information Governance has become a catch phrase. Most boards now discuss how they can better govern their information. While the growth has mainly been due to an increased awareness in cybersecurity, e-discovery will benefit from better organization of the information and less ROT to sift through to find what we need.
After a couple of years of lackluster innovation and somewhat slow growth, we expect 2017 to be a watershed year for e-discovery in Canada.
 We guarantee that our predictions might or might not come true